Argument preview: The doctrine of consular non-reviewability – historical relic or good law?

Posted Wed, February 18th, 2015 9:55 am by Kevin Johnson

The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a first cousin of immigration law’s exceptional “plenary power” doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch. In refusing to disturb the federal government’s reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

More recently, the Court has creatively avoided invoking the plenary power doctrine and instead ensured judicial review of immigration decisions. For example, in Landon v. Plasencia, the Court held that a lawful permanent resident seeking to return to the United States after a weekend in Mexico possessed a due process right to a hearing on the propriety of her exclusion from the country.

The courts, including the Supreme Court, have created a number of exceptions to the doctrine of consular non-reviewability. In Kleindienst v. Mandel, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered – that the applicant had violated the terms of visas on previous visits to the United States – was a “facially legitimate and bona fide reason” for the executive action.

Next Monday, the Supreme Court will hear oral arguments in Kerry v. Din, a case that provides it with the opportunity to provide much-needed guidance on judicial review of consular officer visa decisions. It also could offer some hints about the future of the plenary power doctrine.

Facts

The facts of the case could have been ripped out of the cable television series Homeland.

In 2006, Fauzia Din, a naturalized U.S. citizen, married Kanishka Berashk, a citizen of Afghanistan. A consular officer at the U.S. Embassy in Pakistan denied Berashk’s visa application. The denial simply cited a detailed, complex, and broad provision of the immigration law that bars the admission into the United States of non-citizens who have engaged in “terrorist activity.” The consular officer failed to identify the alleged conduct that triggered the exclusion.

The district court dismissed Din’s suit challenging her husband’s visa denial. The Ninth Circuit reversed. A majority concluded that (1) “a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse’s visa”; (2) the reason offered for the denial was not “facially legitimate”; and (3) the consular officer should have explained “what [he] believed [Berashk to have] done” that justified the visa denial.

Arguments in the briefs

Relying heavily on plenary power precedent, the Solicitor General argues that Din lacks a constitutionally protected interest in her husband’s visa application and that the Ninth Circuit erred in finding that she has a right to judicial review of his visa denial. The government seeks to limit Kleindienst v. Mandel to its facts and further contends that the State Department should not be required to offer a specific explanation in denying a visa on national security grounds. The government specifically contends that judicial review à la Mandel will have “the steep cost of weakening the protections that keep terrorists from our shores.”

This case is one of the few occasions in which the Obama administration has asked the Supreme Court to deny judicial review of an immigration decision. Indeed, in recent years it has refused to defend two lower-court decisions – including one accepted for review this Term holding that the immigration statute barred judicial review of a Board of Immigration Appeals ruling.

Din emphasizes that, like the plaintiffs in Mandel, she is a U.S. citizen challenging the visa denial and a violation of her rights, rather than an alien on foreign soil seeking initial entry into the country. She claims (1) a constitutional right to marry and live with one’s spouse; (2) that the denial of her spouse’s visa infringed that right; and (3) that due process requires that the government provide a facially legitimate and bona fide reason for the denial.

Several groups filed amicus briefs, all in support of Din. In one brief, a number of former consular officers argue in favor of judicial review on the ground that many contemporary visa denials are not discretionary judgments, as was historically the case, but are instead based on whether the person appears on various database and other watchlists. And in another brief, seventy-three law professors question the conventional understanding of foundational cases of the doctrine of consular non-reviewability. They contend that Kleindienst v. Mandel requires judicial review and that such review is consistent with the immigration statute.

Analysis

The Court in this case has the opportunity to narrow the doctrine of consular non-reviewability. Besides the possible doctrinal effects of a decision – including further limitations on the doctrine – the case has the potential for great practical significance. Consular officers stationed in U.S. embassies around the world annually deny hundreds of visa applications. The specific judicial review question is complicated in the case before the Court by the consular officer’s blunt invocation of terrorism as the basis for denial of the visa application.

The ultimate outcome largely depends on how the Court applies Kleindienst v. Mandel. Given its contemporary inclination toward some modicum of judicial review of immigration decisions, the Court might be expected to find that judicial review of visa denials – even if limited in scope – is justified. But how limited should the scope be? Should courts accept the U.S. government’s mere citation to the terrorist activity provision of the immigration law without any explanation, even if that would effectively deny an applicant a meaningful opportunity to rebut the charge? Or should the courts require further explanation from the government – for example, in this case, how and why the consular officer found Berashk inadmissible. How the Court resolves this issue may be the key to the case.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.